Rights group makes case against soli­tary con­fine­ment

The Globe and Mail (Atlantic Edition) - - NEWS - PA­TRICK WHITE

It’s the leg­is­la­tion, not its im­ple­men­ta­tion, that makes soli­tary con­fine­ment a harm­ful prison prac­tice that must be banned, a rights group told court on Fri­day, cap­ping ar­gu­ments in a suit that tests the le­gal­ity of the con­tro­ver­sial pro­ce­dure.

The matter of whether the Cor­rec­tional Ser­vice of Canada’s use of ad­min­is­tra­tive seg­re­ga­tion passes con­sti­tu­tional muster now rests with On­tario Su­pe­rior Court Chief Jus­tice Frank Mar­rocco.

Over the pre­vi­ous three days of the hear­ing, he heard lawyers for the At­tor­ney-Gen­eral of Canada ar­gue that any harm done by soli­tary con­fine­ment was a matter of “mal­ad­min­is­tra­tion” rather than leg­isla­tive gaps. Crown lawyer Pe­ter Southey told the court that the Cor­rec­tional Ser­vice learned of the dan­gers of soli­tary rel­a­tively re­cently and worked du­ti­fully to ad­dress them with a flurry of changes to in­ter­nal poli­cies and di­rec­tives.

On Fri­day, Cana­dian Civil Lib­er­ties As­so­ci­a­tion (CCLA) lawyer Jonathan Lisus sum­mar­ily re­jected the Crown’s po­si­tion.

“It’s sim­ple: This leg­is­la­tion and this prac­tice is an ar­ti­fact, a cruel ar­ti­fact, from an­other time when the con­se­quences of this prac­tice weren’t un­der­stood,” he said. “And now that it’s be­come a bu­reau­cratic re­al­ity, there’s no prin­ci­pled, rig­or­ous, bu­reau­cratic, med­i­cal, sci­en­tific or con­sti­tu­tional jus­ti­fi­ca­tion for 23 hours a day in a cell. There needs to be a fresh look.”

The fo­cus of the case is a hand­ful of pro­vi­sions in the Cor­rec­tional and Con­di­tional Re­lease Act that au­tho­rize the use of pris­oner iso­la­tion.

Mr. Lisus told the court that the act was writ­ten in 1992, be­fore the haz­ards of soli­tary con­fine­ment were fully known.

The as­so­ci­a­tion pre­sented a large body of ev­i­dence sug­gest­ing that soli­tary con­fine­ment has since been linked to an ar­ray of neg­a­tive health im­pacts, in­clud­ing var­i­ous forms of men­tal ill­ness and sui­ci­dal be­hav­iour.

The Crown coun­tered that the leg­is­la­tion, though dated, al­ready ac­counts for any health ef­fects. The act states that all in­mates are en­ti­tled to the same level of health care as all other cit­i­zens and that con­sid­er­a­tion must be given to their “state of health” prior to be­ing placed in soli­tary.

Mr. Southey con­tended that re­cent pol­icy changes have only re­in­forced that health-care re­quire­ment. Among those changes, some of which were adopted as re­cently as Au­gust, are pro­hi­bi­tions on seg­re­ga­tion place­ments for sev­eral vul­ner­a­ble in­mate pop­u­la­tions, in­clud­ing preg­nant women, the phys­i­cally im­paired and “in­mates with a se­ri­ous men­tal ill­ness with sig­nif­i­cant im­pair­ment.”

Mr. Lisus seized on that lat­ter rule as ev­i­dence that new rules “com­pound” prob­lems in the leg­is­la­tion. “I’m sorry, Chief Jus­tice, but this sets a cru­elly high bar,” he said. “We are sup­posed to pre­vent these dis­or­ders from blos­som­ing, not sim­ply look for them and take them from seg­re­ga­tion when they pre­sent. … This isn’t care, this is cri­sis man­age­ment.”

The pro­ceed­ing ven­tured briefly into de­bates over emerg­ing brain science. The CCLA said the still-grow­ing brains of young in­mates make them par­tic­u­larly sus­cep­ti­ble to the ad­verse ef­fects of iso­la­tion. The Crown, mean­while, showed ev­i­dence ex­plain­ing that while the brain con­tin­ues to grow for the first sev­eral decades of life, the es­sen­tial struc­ture is fixed by the late teens, re­duc­ing sen­si­tiv­ity to men­tal stres­sors.

The CCLA filed suit in Jan­uary, 2015, al­leg­ing Char­ter vi­o­la­tions. It wants the ad­min­is­tra­tive seg­re­ga­tion pro­vi­sions in the act struck and rewrit­ten to include 15-day lim­its on seg­re­ga­tion place­ments, in­de­pen­dent over­sight of seg­re­ga­tion de­ci­sions and pro­hi­bi­tions on iso­lat­ing in­mates who are men­tally ill, re­quir­ing pro­tec­tion or aged 18 to 21.

The trial fo­cused largely on the cur­rent soli­tary-con­fine­ment regime rather than a bill of pro­posed changes to seg­re­ga­tion in­tro­duced by the fed­eral gov­ern­ment in June. The CCLA has said nei­ther the cur­rent sys­tem nor the new bill would pre­vent in­mates from be­ing iso­lated in­def­i­nitely.

The Globe and Mail has re­ported ex­ten­sively on the preva­lence and ef­fects of soli­tary con­fine­ment, be­gin­ning with a 2014 investigation into the sui­cide of Ed­ward Snow­shoe af­ter 162 con­sec­u­tive days in seg­re­ga­tion.

COLIN PERKEL/THE CANA­DIAN PRESS

Lawyers Jonathan Lisus, left, and Michael Rosen­berg, act­ing for the CCLA, are seen out­side court in Toronto on Thurs­day.

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